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January 25, 2006

US can bar child-sex tourism abroad: US court

by Sam Savage

By Adam Tanner

SAN FRANCISCO (Reuters) - The U.S. government can prosecute
Americans who travel abroad and engage in paid sex with
children, a U.S. appeals court ruled on Wednesday.

At issue before the U.S. 9th Circuit Court of Appeals was
whether the U.S. Constitution's commerce clause, which gives
Congress the power to regulate foreign trade, permits criminal
sanctions against U.S. citizens paying for sex abroad.

"We hold that Congress acted within the bounds of its
constitutional authority," Margaret McKeown wrote in the 2-1
decision of a three-judge panel of the court based in San
Francisco.

"The illicit sexual conduct reached by the statute
expressly includes commercial sex acts performed by a U.S.
citizen on foreign soil," the judge wrote. "This conduct might
be immoral and criminal, but it is also commercial."

The case involves Michael Lewis Clark, 71, who from 1998 to
2003 lived mostly in the Southeast Asian nation of Cambodia and
had sex with between 40-50 boys there, by his own admission.

Cambodian police arrested him in Phnom Penh in 2003.
Victims told authorities they had earned between two and five
dollars for the sex acts. He was extradited to the United
States and was the first person charged under a 2003 law that
made it easier to prosecute cases of commercial sex with
children abroad.

Clark, who had lived previously in the Seattle area,
admitted his activities in a 2004 plea deal that sent him to
prison for 97 months, but he left open the possibility to
appeal the law on constitutional grounds.

Spokeswoman Jamie Zuieback said U.S. Immigration and
Customs Enforcement has prosecuted at least 15 cases since
2003, compared to two prosecutions in the decade prior. The
recent cases have involved American men soliciting sex in
countries including Cambodia, the Philippines, Thailand and
Kenya.

In a dissent, 9th Circuit Judge Warren Ferguson, appointed
to the court by Democratic President Jimmy Carter in 1979, said
U.S. legal authority did not extend abroad in such cases, even
if the behavior in question was abhorrent.

"The Constitution cannot be interpreted according to the
principle that the end justifies the means," he said. "The
sexual abuse of children abroad is despicable, but we should
not, and need not, refashion our Constitution to address it."

Ferguson argued that Clark's travel from the United States
could not in itself make his later activity subject to
regulation under the commerce clause.

"The mere act of boarding an international flight, without
more, is insufficient to bring all of Clark's downstream
activities that involve an exchange of value within the ambit
of Congress's foreign-commerce power," Ferguson wrote.